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Mark Alexander / October 7, 2005

The epic battle that wasn’t…

“It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy.” –Thomas Jefferson

It has been another brutal week for Patriot warriors on the front line defending liberty’s legacy.

For years, Reagan conservatives – those who embody the revitalized heart and soul of that legacy – have been girding up for a pivotal battle, that of restoring a constructionist majority to the Supreme Court. This was the battle we elected George Bush to lead five years ago, after he committed, among other things, to nominate strict-constructionist judges to the High Court and other federal benches. We knew back then that the next president would have the opportunity to nominate two or perhaps even three judges to the Court – and that those nominations would determine whether our nation will be a Republic or an oligarchy.

Since his narrow electoral victory in 2000, President Bush has led conservatives to some major victories – and some staggering defeats.

He has shown remarkable leadership as Commander in Chief – his most essential constitutional role. This is particularly true of his leadership in prosecuting the war against Jihadistan – and the deposition of those who would harbor and empower these Jihadis. He has shown steadfast command, in the face of much criticism, in defending our national interests with military operations in the Middle East. For this, President Bush deserves much credit.

On the domestic policy front, Mr. Bush has led several successful charges to restore democratic taxation policies. He combined government operations in such a way as to contract a substantial amount of those operations to the private sector – making the future of downsizing those operations easier. He brought faith-based initiatives to the table. He proposed privatization measures for Social Security. He renewed and increased health- and retirement-savings accounts. There were a few other minor wins scattered here and there, but, well, that’s about it – credit where credit is due.

President Bush has also, however, surrendered ground in many critical battles.

In order of importance, second only to his leadership as Commander in Chief, is the President’s role as conservator of constitutional limits on the central government by exercising his power of veto. In that capacity, President Bush has simply and unequivocally failed. Indeed, not once in five years has he exercised that authority. He has presided over the fastest growth in non-military government spending in generations, and he has not contained government regulation. He has pushed extra-constitutional legislation such as the 2001 No Child Left Behind Act and the 2003 Medicare prescription-drug measure. His immigration policy has been incoherent and ineffective. He has proposed raising the $90,000 cap on Social Security taxes, and had the Senate put the measure before him, he was prepared to renew the so-called assault-weapons ban.

His domestic policy successes and failures notwithstanding, the most powerful exercise of his role as conservator of our Constitution is his authority to nominate judges to the federal bench. This role applies particularly to his Supreme Court nominees – since the Court has become the “ultimate arbiters of all constitutional questions.” Of course, the outcome of such arbitration (which should rightly be limited to interpretation) depends on whether a majority of justices render decisions, as our Founders intended, on the plain language of the Constitution – or whether they render decisions based on a so-called “living constitution.” Interpretation based on the latter gives judges the latitude, in effect, to legislate from the bench, to impose their personal or constituent agendas, and to thumb their noses at the Constitution.

As recurrently noted in this column, our Founders warned that judges who set about to legislate by judicial diktat would create, in Thomas Jefferson’s words, a “despotic branch.” Indeed, over the last five decades, the Supreme Court has become just that.

Efforts by Republican presidents to correct the errant majority on the Court in recent decades have been mixed at best.

Ronald Reagan nominated Sandra Day O'Connor, whom he thought to be a constructionist. But O'Connor quickly demonstrated that she was capable of non-constructionist interpretation. In 1987 President Reagan attempted to right this wrong with the nomination of Judge Robert Bork. That resulted in the smearing, the slandering, and the purely political destruction of an individual unmatched in his intellectual abilities as a constructionist jurist. Wanting to avoid a repeat of that failure, President Reagan then nominated Anthony Kennedy, who had no track record as a constructionist but was described as a devout Christian family man. Today, Justice Kennedy cites international law as a basis for his opinions and is a consistent dissenter in “family-friendly” cases.

In 1990, George H.W. Bush, he too hoping to avoid a reprise of the Bork fiasco, nominated the ultimate stealth candidate, David Souter. Alas, Souter has consistently sided with the High Court’s liberals, and his appointment has been an unqualified disaster for conservatives. A year later, Mr. Bush mustered the courage to nominate Clarence Thomas, who, though confronted with great opposition, was confirmed by a 52-48 vote.

During his two terms in office, Bill Clinton nominated two liberal judges: Stephen Breyer and Ruth Bader Ginsburg. Each had a long record of judicial activism, with Ginsberg having been the former general counsel for the ACLU. Still, both of these nominees were confirmed by overwhelming bipartisan Senate majorities – 87-9 and 96-3 respectively.

Senate Democrats, however, have not been equally kind to President George W. Bush’s constructionist circuit-court nominees in the last five years. He has relentlessly supported them in the face of filibuster threats by Senate liberals, and a few of his most contested circuit-court nominees made it to the Senate floor for a vote only after Mr. Bush endorsed a compromise last May.

We now find ourselves facing the pivotal battle to restore our Constitution.

Conservatives have had no illusions about how difficult or important this Supreme Court nomination would be. Having successfully seated 50-year-old John Roberts last week to replace the venerable constructionist Chief Justice William Rehnquist, Mr. Bush’s nominee to replace retiring Justice O'Connor would be the swing vote necessary to restore the court to its constitutional limits as prescribed by our Founders.

We thus came to this front prepared for an epic battle – one that would determine the most lasting legacy of the Bush administration – one that would resurrect our Republic’s Constitution.

On Monday, President Bush announced his nominee to fill the critical swing seat on the High Court. Despite the fact that he is sitting on a 55-45 Senate majority, the President passed on dozens of constructionist jurists with clear conservative records. Among these were Janice Rogers Brown and Priscilla Owen, two of his circuit-court nominees who were held hostage by Democrat filibusters until May, before finally receiving their constitutionally mandated up-or-down vote in the Senate. Oh, the thought of Ted Kennedy blasting away at a charming and forceful black female nominee, and the daughter of Alabama sharecroppers…

But no…

“I picked the best person I could find,” said Mr. Bush announcing the nomination of his personal attorney, Harriet Ellan Miers.

That endorsement carried as much weight as his words in support of former FEMA director Michael Brown (“Brownie, you’re doing a heck of a job”) the day Brown was announcing to the world that he had no idea thousands of NOLA citizens were stranded in that city’s convention center. Like Brown, Miers is an attorney who worked her way into the President’s inner circle.

Brown landed the top seat at FEMA – for which, as we now painfully know, he was largely unqualified. Is Miers qualified for the critical post of Supreme Court Justice?

Right now, only President Bush can speculate on the answer to that question. For her part, Miers said: “It is the responsibility of every generation to be true to the Founders’ vision of the proper role of the courts in our society. I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution.”

That certainly sounds good, but can we trust the President’s judgment? To his credit, he has stood fast in defense of constructionist judges, but he has not, himself, been a good conservator of our Constitution. Perhaps the strongest evidence of this came in March, 2002, when he signed into law a most grievous encroachment on our First Amendment rights: the McCain-Feingold campaign-finance “reform” bill.

As for Miers’ record, there have been plenty of influential Justices with no experience as jurists to attest to their views on constitutional interpretation. Consider the biographies of Justices John Marshall, Robert Jackson, Louis Brandeis, Felix Frankfurter, William O. Douglas, Earl Warren and William Rehnquist, none of whom had judicial experience prior to being seated on the Supreme Court.

As it stands, there are plenty of disappointed conservatives outside the Beltway, and rightly so. After all, we constitute this President’s most steadfast base. We came prepared for this battle. We expected this President to enlist us in an ideological showdown. We expected him to restore his loyal constituency, his conservative credentials, and the spirit of our Republic and its Constitution.

Victory was at hand…and President Bush called for a truce.

In the end, we expect Harriet Miers to be confirmed by a majority on the order of 70 to 75 votes. (Justice Roberts was confirmed with 78 votes, 22 Democrats voting nay.) It’s conceivable that Miers may become the Court’s most dependably constructionist vote – but only time will tell.

Of course, Mr. Bush still has three years in office, and the possibility of at least one more nominee to replace 85-year-old judicial activist John Paul Stevens – assuming Republicans still have a Senate majority after ‘06. For now, fellow Patriots, we’ll keep our powder dry.

For more on conservative objections, to the Miers nomination, read Judge Bork’s essay and other conservative opinion on at http://FederalistPatriot.US/news/Miers.asp

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